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Is The Voting Rights Act Outdated?

In 2006, then-President George W. Bush signs the reauthorization of the Voting Rights Act, on the South Lawn of the White House.
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Mark Wilson/Getty Images

For more than four decades, the Voting Rights Act never lost a court decision as it cut a path for minorities' increased participation in elections.

But the most effective civil rights law in U.S. history faces its most serious challenge as the Supreme Court prepares to re-examine its constitutionality.

Why now? Some say it's because of the law's own success. The plaintiff in the case blames Congress for failing to amend part of the legislation to reflect changing times.

Enacted in 1965, the law relies on a key provision requiring jurisdictions with a discriminatory history to get approval from the federal government before changing their election procedures. The "preclearance" requirement, in Section 5 of the Voting Rights Act, covers nine states, mostly in the South, and parts of several other states.

The plaintiff in the Supreme Court case, Shelby County, Ala., says it should be released from the preclearance requirement because it no longer engages in voter discrimination. Shelby County argues that the mandate is unconstitutional because it's outdated and unfairly holds the county to a higher standard than the rest of the nation.

From 1972 To The Present

The law imposes preclearance on areas where fewer than 50 percent of minorities were registered to vote in 1972. Shelby County says its minority registration rates have risen above the threshold.

The law was last reauthorized by Congress in 2006, for another 25 years. The case before the Supreme Court has raised questions about whether Congress had sufficient evidence to extend the law given that minority voting participation in most parts of the South had substantially increased by then.

Similar concerns were expressed by some Supreme Court justices in a 2009 decision. The court declined to answer the constitutionality question, but in the majority opinion, Chief Justice John Roberts suggested that the law may not be "justified by current needs" and urged Congress to revisit it. The court is expected to issue a ruling next year.

NPR interviewed two members of Congress who voted on the 2006 extension. The congressmen — one supported it, the other opposed it — explained their reasons for their votes and addressed criticisms about the extension.

Rep. Jim Sensenbrenner, R-Wis., chaired the House Judiciary Committee at the time, overseeing the hearings on the law's extension. He also helped write the bill. Rep. John Duncan Jr., R-Tenn., a former state judge, voted against the extension.

Also weighing in was Richard Hasen, a law professor at the University of California, Irvine, and author of the Election Law Blog.

What's your opinion of the evidence presented to Congress alleging that voting discrimination was continuing?

Sensenbrenner: "What the 12,000 pages of [testimony] showed is that in many of the jurisdictions, particularly in Georgia and Texas, there still was pervasive discrimination, and that there were [election rules] changes ... that were not cleared because they had a discriminatory effect.

"It really was a mountain of testimony. It was overwhelming. We had opponents of Section 5 come in and attempt to testify that this really wasn't the case, and they weren't able to make out a clear case."

Duncan: "It was not an easy vote for me because I have always gotten, by far, the highest African-American vote of any Republican in the country ... But when I looked at, I thought, you know, they haven't shown one case of anybody being denied the right to vote. Not one case in all that time.

"The key word that you said there was alleged. There was no actual proof of anybody being denied the right to vote. The proof is in the pudding ... You have the highest percentage of minority officeholders in those states ... You have just as high or higher numbers of [minority] voter registration and voter turnout in those states as in any other states in the country.

"If we did away with the law and they ever could show some instance of somebody being denied the right to vote, we could easily come back in and do something about that. But the law now solves a problem that does not exist."

Hasen: "When all that evidence came, the House hearings were pretty much a collusive affair between ... the chair of the Judiciary Committee, Jim Sensenbrenner, and the civil rights community. There was no real debate on the House side as to the evidence.

"I do think that there is certainly a controversy over whether much of the evidence ... was sufficient to justify the continuation of the preclearance rules."

The preclearance formula is based on minority voter data from 1972 that are no longer accurate for most covered areas. Doesn't that weaken the argument for upholding the law? Why didn't the Congress amend the formula?

Duncan: "I actually voted for an amendment that went down to defeat that said if we're going to have this law, let's apply it to all 50 states. I just didn't think it was any longer necessary to have that law."

Sensenbrenner: "There's been a huge change in the South between 1965 and 2005. I don't think proportionately that there's been that much change in the South between 2005 and the end of 2012.

"But, again, there's a safety valve. If you don't think you have to be under Section 5, then you can petition to get out. That's the procedure that the people who are objecting in this court case should have done. If you can prove you have cleaned up your act and are not passing election laws that discriminate against minorities, then go convince the Justice Department, and you will be out from under the Voting Rights Act."

Hasen: "I certainly advocated [in blog posts and other writings] looking at whether the coverage formula should be updated, but that created a political problem ... For example, I think many people would believe that Ohio and Florida tend to be places with big problems of voting rights. Yet it would be politically difficult to single out those states for special federal supervision. Any new kind of coverage formula would create new fights in Congress.

"One thing I had proposed as a way of getting around this problem would be for the bailout provision of the law to be changed dramatically. The Justice Department would determine which jurisdiction should be entitled to a bailout, and then it would be required to bail everyone out unless there was continuing evidence of a problem with racial discrimination in voting. I thought moving to that kind of system would help the constitutional case before the Supreme Court."

How do you think the Supreme Court will rule?

Hasen: "There is still evidence of unconstitutional conduct as found this year in the Texas redistricting case ... There certainly is some evidence of continued racial discrimination in voting, although it is far less common than in the 1960s. And when it occurs, it is more subtle. Section 5 has served to be an important bargaining chip. It's what helps minority communities get redistricting laws softened, voter identification requirements softened or changed.

"The question is whether that evidence will be sufficient to satisfy the more conservative members of the Supreme Court, who are, first of all, critical of all race-based remedies and, second, seen as already having warned the Congress that something needed to be done to fix Section 5.

"I think the mostly likely outcome is a 5-4 vote striking down the act, and the second-most likely outcome is a 5-4 vote upholding the act."

Sensenbrenner: "I'm proud of this law. I can say that all civil rights laws are important, but the crown jewel has been the Voting Rights Act. It has empowered minorities to be able to have a say in government.

"Going up to the Supreme Court, saying that the court should make findings that are opposite of the findings that Congress made after extremely extensive deliberation, I don't think is the way the system ought to work.

"Now those who complain about judicial activism and not deferring to the legislative decisions that have been made are forgetting about what their previous statements are, in trying to get the court to reverse a decision that has been made by an overwhelming vote of the Congress, not once but several times since 1965."

Duncan: "I hope that the Supreme Court strikes down most of this law, or all of it. It would have gotten much more attention in the Congress if it applied to more states and localities.

"Most members of the House regard it as simply a free vote because it didn't really apply to their states or districts ... It was just an easy way for members to show their support for civil rights even though they knew, I think almost everybody knew, the law isn't needed any longer and had outlived its time. I think they thought, 'Well, this would look good politically.' ... They saw no need to cast a futile vote against it."